Do Academics Have an Ethical Obligation to Publish in Open Access Venues? (Comments Open)

Check out What's the Mission of Law Reviews? on Susan Crawford Blog.  I was particularly interested in the following passage, which follow's Crawford's discussion of the Duke Law Journal's open access policy:

Duke's editor pointed out that law professors with offers from his journal who profess to have a deep commitment to open access will publish articles with journals that are higher in the pecking order but don't put their articles online.  So the profession needs to support the idea that open access is important.

It seems to me that we are coming close to the point where legal academics will begin to discuss the question whether there is a professional obligation to publish only in open-access venues.  Although there may be room for reasonable dissent, I should think that almost all scholars can agree that scholarship should be available to all students and scholars throughout the world at the lowest-possible cost.  The open-access imperative can be grounded on at least three ideas: (1) the idea that scholarship and the emergence of truth is an intrinsic telic good--an end worth pursuing for its own sake; (2) the idea that the creations of new ideas (a special form of information) is a public good in the economist's sense (because ideas have external social benefits and ideas cannot be rationed through price mechanisms); and (3) the idea that the fundamental moral equality of persons supports the maximization of access on reasonable terms of all persons to the realm of scholarly ideas.

We are currently in a period of transition.  Although many open-access venues for the dissemination of scholarship have begun to flourish (e.g., SSRN, posting of papers on personal webpages, and journal-associated open access sites), a large realm of closed-access proprietary-rights publication still exists.  Although some law reviews post open access versions of new articles on the web (including many of the most prestigious venues), other journals (some law reviews, many peer-edited journals) do not.

I believe that the benefits of open access are so compelling that in the long run, some form of open access will be nearly universal--although I am more confident that this will be true of serials publication than of monograph publication.  But even if this is true, we are now in a period of transition.

During this period of transition, scholars as individuals and scholarly institutions as collectives can determine whether the transition is a very long one or a relatively short one.   Faculties can encourage affiliated journals (e.g. law reviews) to adopt open access policies.  Individual scholars can publish in open access venues.

One particular way in which the transition can be facilitated is the development of an "open access" norm.  Such norms are likely to emerge in particular disciplines first and then spread across disciplines and within academic institutions.  In particular, legal academics (who have special "early awareness" of the issue) can begin to foster a professional norm against publication in closed-access, proprietary rights venues.  Various technologies of norm building are available.  One is public discussion and debate.  Another would be the creation of a public vehicle for pledging or vowing to publish in open-access venues whenever that is possible.  A third technique would be to engage in polite but pointed criticism of closed-access venues and those who publish in these venues.

Comments are open, but moderated.

Comments

[Patrick S. O'Donnell]

Excellent points. An open access norm is becoming entrenched in the natural sciences and, it seems, is spilling over into the social sciences (the sciences being in prior possession of the epistemic rationale for its justification) . Thus the impetus toward open access is compelling. I would suggest readers take a look at the arguments of Peter Suber and Steven Harnad on 'open access' in general, and then think about how this applies to the legal world. Harnad and Suber have been persistently and often eloquently arguing and advocating for open access for some time now and seem to have the market on addressing the conceivable objections. Knowing my predilection for composing bibliographies, you'll not be surprised to learn that I would suggest looking over 'Open Access Bibliography: Liberating Scholarly Literature with E-Prints and Open Access Journals:' http://www.escholarlypub.com/oab/oab.htm

And of course the various strategies you mention here for norm building have been and still are being (successfully) employed in the sciences.

[Frank]

I completely agree with you. Peter Suber's open access blog is chronicling the exciting ways in which scholars in many disciplines are demanding an open access norm; there's a great discussion of anthropologists at the 10/8 link on this page:

http://www.earlham.edu/~peters/fos/fosblog.html

[Bruce Boyden]

I think the quote in its original context makes sense, but the proposal or suggestion that a "professional obligation" to publish only in open-access fora be created seems premature or perhaps wrong-headed to me. The Duke editor's observation was simply that scholars who profess to have a deep commitment to open access publishing appear to act inconsistently with their professed belief-set when they choose to publish in a journal that does not make free online copies available.

I would draw a sharp line, however, between that observation and a proposal to make publication online and for free (morally?) obligatory. None of Larry's three grounds appear to me to accomplish that goal. The "idea that scholarship and the emergence of truth is . . . an end worth pursuing for its own sake" does not, it seems to me, make other goals (enhancing one's scholarly status; making money through a book contract) unimportant or not worth pursuing. Similarly, while new ideas may have some public good aspects to them, that is not generally thought to give the public a right to access them without the creator's permission. For example, I have a draft of an article I'm not ready to share (at least not widely) yet. Will I be violating some professional obligation in the future if I choose not to post that draft on the Internet? How is a decision to publish in a non-open-access journal morally different? I think the third ground fails for similar reasons. I share my draft only with friends or colleagues I know well. But if all persons share a "fundamental moral equality," then why do I not have an obligation to "maximize access on reasonable terms" to my unfinished draft? And if I can do that, why can't I make money (or status-enhancement) and not friendship the price of entry?

[Patrick S. O'Donnell]

I don't see how a commitment to publish in an 'open access venue' in any way denies, ignores, or trivializes other goals, such as enhancing one's scholarly standing or making money through a book contract. Indeed, it's not inconceivable, indeed, may be highly probable, that publishing in such fora might routinely serve to further such goals. In my own case, the reading of articles on SSRN or elsewhere has often prompted me to buy a book or two by the author, and we all know of articles freely made available that became quite popular, no doubt enhancing the author's scholarly status. There's nothing in the proposals I know of that suggest or entail someone should (or would be under an ethical obligation to) circulate their drafts to indiscriminate publics, so this strikes me as a red herring. Of course it's perhaps prudent for scientists to circulate accounts of their experiments, proposals, and tentative findings among their peers, given the nature of scientific knowledge, but that has to do with the epistemic conditions and virtues of scientific knowledge, not all of which are generalizable outside the field of science itself. What you do with your drafts is your business, it's the finished product that is thought worthy of being democratically accessible.... There are myriad means for enhancing one's professional status, and writing well-received articles will remain one of those. Similarly, there are many ways of capitalizing (literally and figuratively) on one's legal skills and knowledge, and publishing well-received books (including texbooks) does not seem likely to disappear in the near or distant future.

[Stevan Harnad]

See the discussion thread "The Special Case of Law Reviews" (started Nov 2003) on the American Scientist Open Access Forum.
http://www.ecs.soton.ac.uk/~harnad/Hypermail/Amsci/subject.html#3193

The only question to ask about Law (or any other discipline) is: "Does maximizing the usage and impact of our research articles make any difference (to progress and funding of our research and advancing our careers) in our discipline?"

If not, then there is no need for Open Access in our discipline. But if so, then we too should mandate self-archiving.
http://openaccess.eprints.org/index.php?/archives/71-guid.html